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Judgment
C.Y. Somayajulu, J.—Order dated 22-12-2004 in Rc.No. 415/ 2004/C passed by the first respondent u/s 133 Cr.P.C. is challenged in this petition.
The main contention of the learned counsel for the petitioners is that since the first respondent is not specially empowered by the State Government to pass an order u/s 133 Cr.P.C., the impugned order is liable to be set aside. It is also his contention that since the site, in respect of which the first respondent passed the order, is not a thorough fare or road, but is a private property belonging to the petitioners and since the petitioners were not afforded an opportunity of being heard and since no enquiry whatsoever was conducted by the first respondent, the impugned order is liable to be set side.
The contention of the learned Government Pleader is that since the petitioners have an effective alternative remedy of revision u/s 397 Cr.P.C., this petition is not maintainable.
The contention of the learned Government Pleader is that the site, in respect of which the order is passed, is a Government poramboke land and in fact, the petitioners have constructed a wall, preventing the entry of the fourth respondent into his house with an intention to drive him away from that locality and knock away his property at a cheap rate, and since petitioners did not specifically raise a plea in their affidavit that first respondent was not specially empowered to pass an order u/s 133 Cr.P.C., it cannot now be contended that first respondent was not empowered by the State Government to pass an order u/s 133 Cr.P.C. In reply, the contention of the learned counsel for the petitioners is that since authority of first respondent to pass order u/s 133 Cr.P.C. is a legal plea, the fact that petitioners did not specifically state in their affidavit that first respondent is not empowered by the Government to pass order u/s 133, Cr.P.C. is of no consequence.
The contention of the learned counsel for the petitioners that question relating to Government empowering first respondent to pass order u/s 133 Cr.P.C. is a question of law, in my considered opinion, is not correct. Question whether an officer is vested with a power, which can be exercised only on specific empowerment, or not is a question of fact only, but not a question of law. But question whether a person who is factually not empowered, can pass order or not would be a question of law.
Petitioner, admittedly did not take a plea that first respondent is not specially empowered by the Government to pass order u/s 133, for the respondents either admitting or denying that fact.
As per Section 133 Cr.P.C. every District Magistrate and Sub-divisional Magistrate have power to pass an order under that Section. For any other Executive Magistrate to pass an order under that Section, he should be specially empowered by the State Government to pass orders under that Section. In Sri Ayyappa Stone Crusher, Kuntrapakam v. MRO, Tirupathi 2001 (1) ALT 136 : 2001 (1) ALD (Cri.) 231 (A.P.) also a learned Judge took the same view. How proceeding under Sections 133 and 138 Cr.P.C. can be initiated is laid down in Kranti Parcel Service Vs. The State, relied on by the learned counsel for the petitioners.
If really first respondent is not specifically empowered by the Government to pass an order u/s 133 Cr.P.C., petitioner need not feel aggrieved at all, because as per Section 461 Cr.P.C., any order passed by a Magistrate u/s 133 Cr.P.C., not empowered to pass such order would be void, and since it is well known that void orders are as good or bad as non est orders.
I do not wish to go into the merits of the other contentions raised by the learned counsel for the parties, because the petitioners have not explained the reasons for their not invoking the very effective remedy of revision available to them, because as per Section 397 Cr.P.C. all Magistrates, whether Executive or Judicial and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of Sections 397 and 398 Cr.P.C., and so the order passed by the first respondent, impugned in this petition, can be subjected in a Revision under Cr.P.C.
For that reason alone, the petition is liable to be and hence is dismissed granting liberty to the petitioners to pursue the remedy of Revision available to them under Cr.P.C. Status quoas on to-day will be maintained for one week from to-day by both the parties.
The writ petition is disposed of accordingly. No costs.